Articles Posted inFederal sentencing guidelines

So called “mandatory minimum” sentences for numerous Federal crimes were established a generation ago by the United States Congress. From a policy and financial standpoint, many people have come to the conclusion that the societal benefits are now substantially outweighed by the human costs and the costs purely in terms of dollars. This point of view is shared by many (though certainly not all) in Congress across all political stripes. This topic is starting to generate bipartisan Congressional support among some Senators and Representative of both parties. In fact, legislation was proposed in the Senate known as the Sentencing Reform and Corrections Act of 2015. Among other items, this proposed law would reduce and/or eliminate mandatory minimum sentences and expand the “safety valve” eligibility. The bill has not been passed, though it may move to the Senate floor for consideration this year.

What is interesting to me about the bill is that it is sponsored by such a politically diverse group of Senators. The bill has found support form a large number of former federal prosecutors and senior Government officials including two former FBI Directors and a U.S. Attorney General.

The proposed changes to the mandatory minimum are fully supported by the Charles Colson Task Force on Federal Corrections. The Colson task force describes itself as a:

In 2014, the United States Sentencing Commission approved an Amendment to the United States Sentencing Guidelines (The Guidelines). The Guidelines are the mechanism by which people are ordinarily sentenced in Federal criminal cases. The Amendment lowered the so called Base Offense Level for many types of drugs by two points and it became effective on November 1, 2014. The United States Sentencing Commission promulgated a policy statement making the reduction retroactive. The fact that the amendment is retroactive allows for those already sentenced to in a federal drug case come back to the Court and request a sentence reduction.

What does this mean? It means that many individuals sentenced in federal drug conspiracy cases prior to November 2014 received a lengthier Guidelines sentence than they would receive now. This is due to the two point base offense level reduction authorized by the Sentencing Commission and approved by Congress. The law allows for people sentenced prior to the November 2014 amendments to petition the U.S. District Court to reduce their existing sentence based on the changed base offense level. The two point reduction may sound almost insignificant, but a two point reduction can results in a sentence lowered by many months or even years.

The United States Sentencing Commission (U.S.S.C.) has submitted a number of amendments to the United States Sentencing Guidelines that are to take effect on November 1, 2013. The amendments in their entirety may be found here.

From a practical standpoint, the most important amendment may be one of the changes to U.S.S.G. 3E1.1. Section 3E1.1 is that provision of the Guidelines that addresses Acceptance of Responsibility. The section provides for a 2 point reduction to the base offense level for a defendant who “clearly demonstrates acceptance of responsibility for his offense.” The change to this section added the following language.

“The government should not withhold such a motion based on interests not identified in §3E1.1, such as whether the defendant agrees to waive his or her right to appeal.”

A recent decision of the U.S. Court of Appeals for the Fifth Circuit raised some eyebrows in Federal criminal law circles. In the case of U.S. v. Rodriguez – Escareno, ___F.3d___, 2012 WL5200190 (5th Cir. Oct. 23, 2012) the Court vacated and remanded for resentencing, on a plain error standard, where the District Court imposed a 16 level enhancement for defendant’s previous conviction for a “drug trafficking offense.”

Mr. Rodriguez – Escareno was indicted by a federal Grand Jury for the crime of Illegal Reentry, and he plead guilty to the charge. In the Federal system, when an indicted person pleads guilty, a Presentence Investigation Report (PSR) is prepared. One of the matters that the PSR addresses is the existence of prior convictions. Mr. Rosdriguez – Escareno was previously convicted of a conspiracy to distribute methamphetamine. The PSR determined that Rodriguez-Escareno’s previous crime was a “drug trafficking offense,” which permitted the application of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i). On the surface, it seems obvious that a drug conspiracy withing the meaning of the Federal criminal statute will be considered a drug trafficking offense within the meaning of the U.S. Sentencing Guidelines; at least that is what everyone in Mr. Rodriguez – Escareno’s case appeared to believe.

The Federal Drug Conspiracy laws establish a so called “mandatory minimum” of a certain number of years in prison upon conviction and sentencing. depending upon the amount of drugs involved. For example, 5-40 years in prison with a minimum of five or 10 years to Life in prison Essentially, it means that if one is convicted of a dug conspiracy, one is required to serve the mandatory minimum without regard to applicable sentence under the U.S. Sentencing Guidelines

Is the mandatory minimum really “mandatory.” For many, the answer is clearly, no. There are several mechanisms built into the law that allow people to avoid, in some cases, the mandatory minimum requirements.

Sentencing in federal criminal case is largely a product of the U.S. Sentencing Guidelines Manual. For those that may not know, the Guidelines were established by Congress in the 1980s in an effort to bring uniformity and consistency to federal criminal cases. The Guidelines established, among other things, mandatory minimum sentences for many drug conspiracy cases.

In most Federal Criminal cases, if a person is convicted, the sentence will be determined by using the United States Sentencing Guidelines. The Guidelines were created by the U.S. Congress in the 1980s. The Guidelines were created with the goal of achieving uniformity in Federal criminal sentences across the United States.

In other words, if you are convicted and sentenced for participating in a Federal drug conspiracy case in the Eastern District of Texas, your sentence should be substantially like that of a similarly situated person in another part of the country.

The Guidelines are formulaic and they operate to calcuate a prison term using several criteria. Broadly speaking, these can be broken down into several categories.